Senator wants some DUI lawyers’ ads banned

Created 04/23/2008 - 12:13am

A prominent Democratic state senator wants to ban certain advertisements by DUI defense lawyers, which raised First Amendment questions Tuesday and brought criticism from her opponent who practices in DUI law.

Tuesday, Speaker Pro Tem Rosalind Kurita (D-Clarksville) successfully added the provision to ban some advertising styles that DUI lawyers use to a bill.

The provision explicitly prohibited attorneys from advertising that they specialized in DUI cases, from advertising a discounted rate for DUI defense, guaranteeing a certain judgment in the case or claiming that the attorney had more expertise than another on drunken driving defense.

Kurita said she pushed for the amendment because she was tired of suspected DUI offenders not being convicted.

“Is this morally what we want, to allow people to have advertisements that say, ‘let me get you off your drunk driving charge?’” Kurita said. “I mean it’s like we’re saying that it’s OK.”

Kurita offered her amendment as she braces for opposition in the primary election this summer within the Democratic Party, some members of whom still feel betrayed from a key vote Kurita cast in 2007.

That year, Kurita crossed party lines to cast a deciding vote for Ron Ramsey (R-Blountville) to be elected speaker of the Senate and lieutenant governor. A few days later, Ramsey appointed Kurita to the Speaker Pro Tem position, the No. 2 spot in the Senate.

In August, Democrats may have their chance for revenge as Kurita will face primary opposition from Tim Barnes, a Clarksville attorney.

Part of Barnes’ area of legal practice includes DUI defense, although he is not a certified specialist.

Barnes advertises that he does DUI defense work, as well as several other areas, in the Yellow Pages, in a local newspaper and on radio stations.

While Barnes says his ads don’t promote what Kurita’s amendment bans — and therefore may not be affected — Barnes said Kurita’s move had “three or four constitutional problems.”

“Even a fundamental understanding of the Constitution would inform somebody that that’s an amendment that you can’t have — that’s a First Amendment right,” Barnes said.

Barnes said the only DUI attorney he could recall who noted a DUI specialty was the late “DUI Mike” Fox.

Kurita said Barnes’ advertising activities didn’t have “any bearing” on her amendment.

“I certainly would not want that to color my intensity on this issue,” Kurita said of cracking down on drunken drivers. “I can’t help extraneous activities.”

The Senate Finance Committee approved Kurita’s amendment on a voice vote, despite Senate Democratic Leader Jim Kyle’s objections that it violated the First Amendment’s right to free speech.

Kyle, a Memphis attorney, said the Legislature shouldn’t be getting involved in judicial ethics, said Kurita’s amendment appeared “election-driven” and called it unconstitutional.

“If you’re in a legitimate business, you ought to be able to advertise,” Kyle said.

Kyle and Kurita have a rocky recent political history. After Kurita’s vote for Ramsey, Kyle wrote a letter to Democratic Party activists stressing the need to field a challenger against her in 2008.

Kurita said her amendment did not prohibit DUI defense lawyers from advertising.

“But when you say that I can promise you I can get you off your DUI charge, that’s a different deal,” Kurita said.

But currently, Tennessee Supreme Court ethics rules prohibit attorneys from guaranteeing an outcome in a case, said Allan Ramsaur, executive director of the Tennessee Bar Association.

In addition, attorneys are prohibited from advertising that they are specialists unless they receive certification from the state, said Dave Shearon, the executive director of the Tennessee Commission on Continuing Legal Education and Specialization.

There are just two DUI specialists in Tennessee. Banning those attorneys from proclaiming they’re specialists — as Kurita’s amendment does — would violate a 1990 U.S. Supreme Court opinion, Shearon said.